Opinion
6-25-1953
Guardianship of HIROKO KAWAKITA et al. * Civ. 4297.
Morris Lavine, Los Angeles, for appellants. Harry W. Horton and R. L. Knox, Jr., El Centro, for respondent.
Guardianship of HIROKO KAWAKITA et al. *
June 25, 1953.
Hearing Granted Aug. 20, 1953.
Morris Lavine, Los Angeles, for appellants.
Harry W. Horton and R. L. Knox, Jr., El Centro, for respondent.
MUSSELL, Justice.
On October 14, 1950, there was filed in the Superior Court of Imperial county on behalf of Hiroko Kawakita and Tomoya Kawakita a motion 'to vacate, annul and declare void the order for appointment of W. H. Lorenz as guardian and all subsequent orders based thereon on the ground that the court was without jurisdiction to entertain the aforesaid guardianship proceedings and to make any of the orders in this proceeding.' After the conclusion of the hearing had on this motion, the trial court, on July 24, 1951, made its order, in substance, that the motions of Tomoya Kawakita and each of them are denied; that the motion of Hiroko Kawakita to vacate the order of appointment of W. H. Lorenz as guardian be denied; and that as to Hiroko Kawakita only, all orders in the guardianship proceedings subsequent to the appointment of Lorenz as guardian are vacated, annulled and declared void.
Hiroko Kawakita, alone, has appealed from this order and since no appeal was taken by Tomoya Kawakita therefrom, we here consider and pass upon the validity of the orders insofar as they affect the appellant Hiroko Kawakita.
Facts
Hiroko Kawakita and her brother, Tomoya, of Japanese ancestry, were born in Calexico, California. She was 21 years old on October 19, 1937, and he attained his majority on September 26, 1942. In 1923, Yasaburo Kawakita, the father of the two, then minors, was appointed as their guardian and in 1927 he furnished funds to purchase a lot in Calexico on which there was a two story building. The title to this property was taken in the names of Hiroko and Tomoya and they each owned an undivided one-half interest therein, subject to a trust deed in favor of their father for the purchase money advanced. Yasaburo filed a report of his guardianship in 1937 and nothing further was done by him in the guardianship proceedings until April, 1942, when he executed his resignation as guardian.
Tomoya Kawakita left California and went to Japan some time in 1939 and did not return to the United States until 1946. After his return, he was charged with the crime of Treason against the United States by indictment returned November 1, 1947, in which indictment several overt acts involving his brutal treatment of American prisoners of war in Japan were charged. He was convicted, after jury trial, and on or about October 5, 1948, judgment and sentence of death was imposed upon him. United States v. Tomoya Kawakita, D.C., 96 F.Supp. 824. A judgment of conviction was affirmed by the Supreme Court of the United States on June 2, 1952, 343 U.S. 717, 72 S.Ct. 950, 96 L.Ed. 1249, and since October 5, 1948, Tomoya has been subject to the provision of Section 2602 of the Penal Code of this state, which is that 'A person sentenced to death is deemed civilly dead during the existence of the death sentence.'
On or about February, 1942, Yasaburo Kawakita, who had been operating a grocery store on the premises involved, was evacuated from his residence and placed in an internment camp for Japanese aliens. Since it was impossible to conduct his grocery business, he, on or about March 10, 1942, executed a general power of attorney to his daughter, Hiroko, and this document was recorded April 14, 1942.
About May 1942, Hiroko, under Army orders, left California for the Japanese relocation center at Poston, Arizona, where she remained until August, 1945.
On April 2, 1942, Hiroko, both in her own name and as attorney in fact for her father, signed a contract for the sale of the real property involved, including the fixtures and stock of merchandise in the store, to one John Rashid. The price stipulated for the real property was $6,000. On April 3, 1942, an escrow was opened with the Bank of America National Trust and Savings Association, at Calexico, to consummate this sale. Instructions in the escrow were signed by Hiroko, individually, and as attorney in fact, and on May 13, 1942, she executed a quitclaim deed to Rashid conveying the real property to him. Rashid paid $6,000 for the real property, $2,000 for the fixtures and $3,428.95 for the merchandise.
On April 8, 1942, one W. H. Lorenz petitioned the Superior Court to be appointed as guardian for Hiroko and Tomoya, who were named in the petition as minors. Hiroko, who was then 25 years of age, filed a nomination in which she nominated W. H. Lorenz and joined in his petition for appointment as guardian of herself and brother. A notice of the hearing on the petition was posted and on April 27, 1942, the court made an order appointing Lorenz as guardian. On May 5, 1942, Lorenz petitioned the court for permission to sell the real porperty involved for the sum of $6,000. Notice of the hearing thereon was posted and published for a period of 15 days and on May 22, 1942, the court signed and filed an order permitting and approving the sale of the property to John T. Rashid for the sum of $6,000. On April 14, 1942, Rashid applied to the United States Treasury Department to purchase the real property involved from W. H. Lorenz, guardian, for the sum of $6,000 and a license was issued by the Federal Reserve Bank in San Francisco in behalf of the Secretary of the Treasury to consummate the sale and to deposit the purchase money (less certain deductions) to a blocked account in the Bank of America at Calexico in the name of Yasaburo Kawakita, as a 'national' of Japan.
On May 17, 1947, Hiroko Kawakita, Tomoya Kawakita and Yasaburo Kawakita filed an action in the Superior Court of Imperial county against W. H. Lorenz and John T. Rashid to declare void the appointment of Lorenz as guardian, to quiet title to the property here involved and to recover damages for fraud. That action, No. 23271, was dismissed by the trial court on motion of defendants on February 29, 1952, and an appeal from the order of dismissal thereof is pending in this court, 258 P.2d 1039.
On October 14, 1950, Hiroko and Tomoya Kawakita filed the motion here involved to declare void the appointment of Lorenz as guardian and to set aside all subsequent orders based thereon. In substance, the basis of the motion is that the court was without jurisdiction to appoint Lorenz as guardian; that the petition for the appointment of Lorenz was not signed by Hiroko and Tomoya, personally; that no showing was made in said petition of the necessity for the appointment of a guardian; that Hiroko, at the time she signed the nomination of Lorenz as guardian, was 25 years of age; that the notice of sale of the property was not made in conformity with Sections 1516 and 1200 of the Probate Code; that no notice to the persons having custody was given as provided in Section 1441 of the Probate Code; that there was no property to be disposed of on May 5, 1942, when the petition for authority to sell was filed; that the petition for permission to sell the property was executed by Lorenz as guardian 5 days before he was officially appointed as such; that there was no appraisal of the property as required by the Probate Code, §§ 605-609, 611; that the notice of sale was not published as provided in Section 782 of the Probate Code and that the sole purpose of the appointment of Lorenz was to perpetrate a fraud on the court and on the alien property custodian of the United States.
In opposition to the motion, there was filed on behalf of Lorenz certain written objections, in substance as follows: That Tomoya Kawakita was 'a civilly dead person' in that he had been indicted for and found guilty of Treason and had been sentenced to suffer the death penalty; that both Hiroko Kawakita and Tomoya Kawakita, prior to the filing of the motion in the guardianship proceeding, elected to affirm the transactions in the guardianship proceeding and upon the basis of that affirmation, to sue W. H. Lorenz and John T. Rashid in a civil proceeding in the Superior Court in and for the County of Imperial, civil action No. 23271; that the appointment of Lorenz as guardian was not void upon its face; that the court did have jurisdiction of the estate of Tomoya and Hiroko and that under the facts and circumstances involved, including a lapse of some 8 years, Tomoya and Hiroko should be estopped to challenge the validity of the guardianship proceedings; that Hiroko had, by her conduct, ratified the conduct of Lorenz as guardian and the proceedings had in the guardianship by joining outside of probate in the sale of the property and in the execution of a quitclaim deed to her interest in the property; that the motions and proceedings to vacate the orders are barred by the three-year statute of limitations; that the court had jurisdiction to appoint Lorenz as guardian under the facts and circumstances existing at the time.
At the hearing on the motion there was offered and received in evidence the files in Superior Court action No. 23271, supra, together with a certified copy of the record of conviction of Tomoya Kawakita. In opposition to the motion there was also offered the quitclaim deed of Hiroko to John Rashid. The offer of this deed was objected to and the court sustained the objection. Thereafter an offer of proof was made on behalf of the guardian to prove the execution and recording of this deed. However, the files in action No. 23271 contained an allegation that the deed was executed and these files were admitted in evidence. In behalf of the guardian it was urged that Tomoya Kawakita could not be heard in the matter because of his conviction and sentence and for the further reason that he had assigned his interest in the property to his attorney.
The order from which this appeal is taken is in three parts and, in effect, three separate orders are set forth therein;
1. The motions of Tomoya Kawakita are denied. Since he has not appealed from the order and is now civilly dead, this part of the order cannot here be disturbed.
2. The motion of Hiroko Kawakita to vacate, annul and declare void the order for appointment of Lorenz as guardian is denied. As to this order, the record shows that Hiroko instigated the guardianship proceedings, specifically nominated Lorenz as guardian and joined in his petition for appointment; that she was endeavoring to effect a sale of the property involved to Rashid and entered into a contract of sale with him; that she signed the escrow instructions for herself and for her father, from whom she had received a power of attorney; that she executed a quitclaim deed to Rashid as to her interest in the property; that the funds realized from the sale were placed in a bank in her father's name; and that she was a party plaintiff in the amended complaint filed in action No. 23271 in which damages were sought for fraud rather than rescission of the contract of sale. Under these circumstances, Hiroko Kawakita cannot now successfully maintain that the order appointing the guardian was void. She ratified the transaction and is estopped to deny the appointment.
3. The last order (or part of the order) is that all orders subsequent to the order appointing the guardian, and in particular the order concerning the sale of the property are vacated, annulled and declared void. It is apparent that by this order the court recognized appellant's objections to the validity of the sale by the guardian and set it aside. This was the real relief sought by appellant's motion. A guardian was appointed but his subsequent acts as such were declared to be null and void. Furthermore, the record shows that on October 2, 1946, Lorenz was, by court order, released and discharged as guardian.
The order is affirmed.
BARNARD, P. J., and GRIFFIN, J., concur. --------------- * Subsequent opinion 271 P.2d 13.